Competition Law Trends: 2025 Review and Outlook for 2026

Oleksandr Fefelov, Attorney, Partner, Head of Antitrust and Competition Practice

Source: Yurydychna Gazeta

Competition trends in Ukraine demonstrate a transition from a formal interpretation of legal provisions to a comprehensive analysis of the economic behavior of business entities, circumstantial evidence, procedural safeguards of the parties, and the impact of decisions issued by the Anti-Monopoly Committee of Ukraine (AMCU).

An analysis of decisions rendered by the Commercial Cassation Court within the Supreme Court reveals several critical trends for businesses:

• proving anticompetitive concerted actions – evolving approaches to evaluating circumstantial evidence in cases involving bid rigging in public procurement;
• legal consequences of AMCU decisions – clarifying the status of Committee decisions during their judicial challenge and the entry of companies into the Register of Infringers;
• procedural toolkit – clearly distinguishing between the concepts of “suspension of effect” and “suspension of enforcement” of AMCU decisions when securing injunctive relief;
• unfair competition – rapid development of case law regarding misleading consumers without the need to prove specific financial damages to competitors;
• procedural control – increased judicial scrutiny over the scope of application reviews at the case initiation stage by the Committee and the reasoning requirements for its decisions.

A modern antitrust dispute is no longer merely a question of whether collusion occurred or whether the AMCU imposed a fine correctly. The subject of judicial analysis now encompasses all elements of antitrust proceedings: from the initial characterization of conduct to evidence, procedural deadlines, and specific consequences of the decision taken.

Disputes with the AMCU: How Approaches to Challenges Have Changed

A key feature of disputes involving the AMCU is the necessity of handling legal and economic components simultaneously. On the one hand, courts recognize the Committee’s special competence in economic analysis. On the other hand, courts verify whether the AMCU had sufficient factual grounds for its findings, examined admissible evidence, and did not ignore circumstances beneficial to the business entity.

An effective challenge to an AMCU decision can no longer be limited to broad assertions regarding an incorrect evaluation of the case by the Committee. The claimant must demonstrate a specific defect in the decision:

• erroneous establishment or evaluation of factual circumstances;
• lack of admissible evidence or inconsistencies between evidence and conclusions;
• incorrect application of substantive law provisions or incomplete market investigation;
• material procedural violations during the proceedings.

Proving Bid Rigging: A Set of Circumstantial Facts Instead of a “Direct Document”

Cases regarding anticompetitive concerted actions by participants in public procurement remain one of the most substantial categories of competition disputes by volume. These involve, in particular, concerted actions aimed at distorting the results of tenders, auctions, and competitions. Ilyashev & Partners receives client requests for advice and representation in such matters on an almost daily basis.

A characteristic feature of these cases is that direct agreements between tenderers cannot always be uncovered. In practice, the AMCU frequently resorts to proving concerted behavior through a combination of circumstantial evidence.

This approach was reaffirmed by the Supreme Court in a judgment of the Commercial Cassation Court dated November 13, 2025, in case No. 910/102/25. In this case, the Committee relied on circumstances such as:

• use of a shared IP address by participants;
• synchronicity of actions when submitting bid proposals;
• common characteristics of electronic files;
• existence of employment ties;
• shared counterparties;
• financial relations;
• other circumstances that cumulatively indicated a lack of independent competitive behavior.

The Supreme Court agreed that such a set of circumstances (which do not constitute direct evidence) may still be sufficient to establish anticompetitive concerted actions. The Court did not require the AMCU to locate a document in which the participants explicitly agreed on tender outcomes or other direct evidence of collusion. For competition law, it appears entirely logical that a conspiracy leaving direct written evidence would be an exception in modern conditions. Thus, proof in cases of alleged collusion often rests on behavioral analysis and inferences.

In case No. 910/102/25, the weight of the IP address evidence was reinforced by other factors:

• synchronized actions;
• shared employees;
• electronic file attributes;
• commercial and financial ties, the combination of which allowed for the conclusion of concerted behavior.

The Supreme Court’s approach can be summarized as follows: technical evidence alone does not necessarily prove collusion, but its combination with other circumstances can create an evidentiary threshold sufficient for the Committee and the court to establish anticompetitive conduct. Business entities must keep this under constant focus during their operational activities.

Is a Single Shared IP Address Sufficient to Prove Bid Rigging?

I would answer: no, a shared IP address alone does not automatically prove collusion, as fully natural and lawful explanations may exist. Offices of two entities may be situated in the same business center, they may use the same ISP, submit tender proposals via a shared network, utilize a common electronic trading platform, or even use the infrastructure of a third party. Without combination with other characteristics of collusion, the significance of a shared IP address should not be interpreted to the detriment of a business entity.

Practical takeaway for business: if the AMCU cites a shared IP address, a business entity should proactively provide an explanation as to why the IP address was shared and demonstrate the absence of other coordination indicators.

Cancellation of Tenders Does Not Absolve Responsibility for Collusion

Another circumstance that some business entities believe should be considered when assessing their tender conduct is the presence or absence of an actual adverse outcome for competition and/or other participants or the procuring entity.

In August 2025, the Commercial Cassation Court emphasized the groundlessness of the position that canceling tenders or declaring them void automatically implies the absence of an infringement. A similar approach was highlighted by Supreme Court judges when discussing contemporary competition law practice: to qualify conduct as an anticompetitive concerted action, establishing an agreement on competitive behavior that resulted in, or could lead to, a negative impact on competition is sufficient. In case No. 910/3374/24, the court tied this approach directly to the distortion of the competitive procedure itself.

Competition law protects not only specific economic outcomes of tenders but the process of competition itself. If two participants agreed on their conduct but the tender was canceled for reasons independent of them, the collusion itself does not cease to be anticompetitive. Otherwise, participants could evade liability simply because a procurement ultimately failed to finalize.

Listing a Company in the AMCU Register of Infringers

One of the most notable rulings is the Supreme Court judgment of December 18, 2025, in case No. 910/897/25. The facts of the case carry major practical significance: the AMCU fined an enterprise for anticompetitive actions and listed its information in the State Register of Entities Held Liable for Bid Rigging. This entails an automatic 3-year ban from participating in public procurements.

The enterprise challenged the AMCU decision in court, arguing that such restrictions should not apply while judicial proceedings are pending.

The Supreme Court disagreed with the claimant. The Court noted that entering information into the Consolidated Information List and the State Register does not constitute the enforcement of an AMCU decision within the meaning of Article 60(4) of the Law of Ukraine “On Protection of Economic Competition.” Filing a legal challenge does not, in itself, suspend the inclusion of relevant information in such registers.

This judgment gained particular importance because the Supreme Court did not merely resolve a specific dispute, but refined its prior legal position outlined in case No. 910/10407/20. This was prompted by the insertion of Article 48-1 into the Law of Ukraine “On Protection of Economic Competition,” which specifically governed the State Register of Entities Held Liable for Infringements. Consequently, legislative amendments may necessitate further refinements of the Supreme Court’s established approach.

Practical takeaway for business: situations arise where an enterprise challenges a Committee decision, yet until that decision is set aside or declared invalid, it continues to trigger legal consequences. Businesses must pay close attention to this when structuring their defense. The risk for an enterprise involves not only paying a fine, but severe consequences such as debarment from public procurement.

Suspension of Effect vs. Suspension of Enforcement of AMCU Decisions

In its judgment of March 26, 2026, in case No. 910/14711/25, the Commercial Cassation Court distinguished between the concepts of suspending the effect of an AMCU decision and suspending its enforcement.

Suspending the effect of a decision means temporarily freezing its legal force. If a decision is not in effect, it cannot serve as a legal basis for enforcement. Therefore, suspending the effect of a decision, where appropriate grounds exist, may also result in the suspension of its enforcement.

At the same time, suspending enforcement does not automatically mean suspending the legal validity of the decision. The Supreme Court highlighted that applications for interim measures must be decided based on specific case circumstances, as no universal algorithm exists. This position directly impacts how applications for injunctive relief should be drafted. If an enterprise seeks to prevent an AMCU decision from being used as a legal basis for further actions, it must clearly specify which consequence needs to be stayed – the effect of the decision, its corresponding legal ramifications, or actions of third parties relying on the decision’s validity.

Practical takeaway for business: imprecise wording in the relief sought may lead to a situation where a court formally grants an application, yet the measure fails to provide actual protection to the enterprise’s interests. Thus, injunctive relief in antitrust disputes must be treated as a strategic component of litigation rather than a routine enclosure to a statement of claim.

AMCU Disputes Over Misleading Consumers Without Actual Loss

Particularly illustrative is the judgment of March 20, 2026, in case No. 910/9006/25. The subject of the dispute concerned claims on cosmetic packaging regarding medicinal properties. The product was not registered as a medicine, yet its labeling created an impression among consumers that it possessed therapeutic properties.

The Supreme Court upheld the classification of this conduct as disseminating misleading information and as an act of unfair competition. Crucially, the Court did not require proof of actual financial damage to competitors. To establish an infringement, it is sufficient to show the dissemination of information capable of influencing consumer purchasing decisions. This underscores that competition law safeguards not only existing property interests of competitors, but the integrity of consumer choice formation itself.

The volume of such cases at the AMCU is currently rising. Even bona fide companies find themselves under investigation, and updating information or correcting minor formal errors before the start of an investigation does not guarantee immunity from enforcement challenges.

Practical takeaway for business: businesses cannot rely solely on the argument that no financial harm to competitors was proven as a result of such advertising, as courts will evaluate the potential capability to distort competition or affect consumer choice.

Scope of AMCU Review at the Case Initiation Stage

Consider the court’s stance set out in the judgment of March 19, 2026, in case No. 910/980/25. Here, the Supreme Court articulated an important procedural rule: when deciding whether to initiate proceedings based on an application regarding an infringement, the AMCU needs only to assess the presence of indicia of an infringement, rather than establishing the violation itself, since initiating a case is merely the starting point of an investigation.

The AMCU must not demand that an applicant prove the violation – that responsibility rests with the Committee itself. However, it must confirm sufficient indicators of a potential violation. Only upon conclusion of the investigation must the AMCU possess a sufficient evidentiary base to confirm the infringement.

Practical takeaway for business: when challenging an AMCU decision, an applicant must properly identify the exact subject of the appeal. If appealing a refusal to initiate proceedings, arguments must focus on the proper review of the application and the presence of indicia of an infringement. If challenging a decision on the merits, a different legal strategy applies.

The court does not replace the AMCU; it merely reviews whether the Committee’s decision complies with requirements of legality, soundness, completeness of factual investigation, and adequate reasoning. For example, economic market analysis conducted by the AMCU is subject to judicial review regarding logic and consistency with established facts, but the court does not conduct market definition itself, while preventing unsubstantiated assumptions by the Committee.

Supreme Court Approach to AMCU Litigation: Key Trends

Judicial practice in Ukrainian competition law during 2025–2026 was defined by a deeper focus on proving infringements, procedural requirements, and legal consequences. Understanding the Supreme Court’s approach to establishing concerted conduct through circumstantial evidence is vital.

Five key trends characterize the Supreme Court’s approach to AMCU disputes:

• evidentiary complexity. In collusion cases, courts increasingly evaluate business conduct holistically rather than analyzing evidence in isolation;
• procedural rigor. Exceeding deadlines, incomplete investigation of applications, or inadequate reasoning in decisions can constitute independent grounds for review;
• tangible impact of AMCU decisions. Appealing a decision does not automatically suspend all of its legal consequences;
• differentiation of procedural concepts. The Supreme Court continues to clearly separate case initiation, review on the merits, the legal effect of a decision, and its enforcement;
• alignment with European standards.

What Businesses Should Keep in Mind

• A combination of facts, which individually may hold varying evidentiary weight, can cumulatively substantiate coordinated behavior. Establishing a violation does not always require proving actual monetary loss or completed procurement. The distortion or potential distortion of competitive procedures is sufficient for legal characterization.
• Challenging an AMCU decision in court does not automatically suspend all legal consequences stemming from its validity.
• Disseminating misleading information regarding medicinal properties of goods can constitute a competition law violation even without proving actual loss to competitors, provided such information can influence consumer behavior.
• Distinguishing between the suspension of effect and suspension of enforcement of AMCU decisions heightens the importance of precise drafting in applications for injunctive relief.
• At the case initiation stage, the AMCU must establish the presence of indicia of a violation, rather than proving the violation on the merits.

Collectively, these Supreme Court judgments point toward a more mature competition justice model. Priority is given to evidentiary standards, recognizing the AMCU’s specialized expertise without excluding its decisions from full judicial review, enhancing procedural guarantees, accounting for real competitive effects of conduct, expanding the role of digital evidence, strengthening links between competition law, public procurement, and consumer protection, and bringing practice closer to European standards.